from the deregulatory-hypocrisy dept

Last month, we noted how entrenched broadband providers had found a new way to try and prevent Google Fiber from bringing much-needed competition into their markets: blocking access to carrier-owned utility poles. AT&T recently sued the city of Louisville for embracing so-called "one touch make ready" policies that dramatically streamline the pole-attachment process. The rule rewrites allow third-party contractors to move (often just a few inches) multiple companies' gear, dramatically reducing the cost and time frame for new deployment (in Louisville by an estimated five months or so):

In the case of one touch make-ready, companies that own poles agree on one or more common contractors that could move existing attachments on a pole (‘make ready’ work), allowing a single crew to move all attachments on a pole on a single visit, rather than sending in a unique crew to move each attachment sequentially. Sending in separate crews is time-consuming and disruptive to local communities and municipal governments. One-touch make-ready polices would ease this burden.

And while this is generally an idea that would benefit all broadband providers, it would benefit new providers like Google Fiber the most. That's why companies like AT&T, Comcast and Time Warner Cable have been blocking this pole-attachment reform, in some cases trying to claim such policies violate their Constitutional rights. The ISPs figure that if they can't block Google Fiber from coming to town, their lawyers can at least slow Google Fiber's progress while they try to lock customers down in long-term contracts.

In addition to skirmishes like this in Austin and Louisville, AT&T, Comcast and Time Warner Cable have been fighting pole-attachment reform across California, where Google Fiber is eyeing San Diego, Irvine, Los Angeles and portions of Silicon Valley as potential expansion markets:

Mountain View-based Google has been fighting before the California Public Utilities Commission for the right to use publicly and privately owned utility poles because burying fiber cables is expensive and in places impossible. AT&T and the cable TV association representing Comcast and Time Warner Cable have told state regulators that Google has no such right. And Google contends that a group that controls many Bay Area utility poles, and includes Google competitors as members, also has been blocking access to the poles.

...The Northern California Joint Pole Association has refused to grant membership to Google, according to (Google lawyers), and membership is required for access to the group's poles. Among the association's members are AT&T and Comcast, both expanding their own gigabit-speed Internet services.

In addition to thwarting streamlined pole attachment rules, both companies have played a starring role in crafting state level protectionist laws -- some of which hinder Google Fiber or other companies' ability to strike public/private partnerships. As such, it's worth remembering the next time you hear companies like AT&T or Comcast complaining about "onerous regulations" -- that they're consistently in favor of just such regulations -- if they protect them from having to actually compete.

from the good-to-see dept

Back in 2010, there was a troubling ruling in Germany, saying that people who ran open WiFi access points needed to secure them, or they could be held liable for people using those connections to download infringing content. This seemed to contradict with the European Ecommerce Directive that gives safe harbors to internet service providers (similar to our DMCA safe harbors in the US). In the fall of 2014, we noted that the EU Court of Justice was taking up that case and now that court's Advocate General has recommended that the court allow open WiFi, in saying that, yes, those who operate WiFi access points can be considered ISPs under the law, and are thus protected from liability.

The specific case involved a shop owner (who also happens to be a Pirate Party member -- and whose shop offered lighting and music equipment for music events), who had an open WiFi access point in the shop, where someone apparently downloaded some music. Sony then sued him and argued he was liable for having the open WiFi.

A lot of the focus was on whether or not offering a free WiFi access point in a shop counted as economic activity, to be covered by the Ecommerce Directive, and the Advocate General said that it pretty obviously is, despite the fact that Sony Music argued it did not.

In my view, where, in the course of his business, an economic operator offers Internet access to the public, even if not against payment, he is providing a service of an economic nature, even if it is merely ancillary to his principal activity.

The very operation of a Wi-Fi network that is accessible to the public, in connection with another economic activity, necessarily takes place in an economic context.

Access to the Internet may constitute a form of marketing designed to attract customers and gain their loyalty. In so far as it contributes to the carrying on of the principal activity, the fact that the service provider may not be directly remunerated by recipients of the service is not decisive. In accordance with consistent case-law, the requirement for pecuniary consideration laid down in Article 57 TFEU does not mean that the service must be paid for directly by those who benefit from it.

Sony Music’s argument, by which it disputes the fact that the service in question is ‘normally’ provided for consideration, fails to convince me.

Admittedly, Internet access is often provided, in a hotel or bar, free of charge. However, that fact in no way contradicts the conclusion that the service in question is matched with a pecuniary consideration that is incorporated into the price of other services.

I see no reason why the provision of Internet access should be viewed differently when it is offered in connection with other economic activities.

Sony Music even tried to claim that because the shop owner at one point changed the name of the access point to "Freedom, not Fear" (in German) that it demonstrated that it wasn't an "economic" effort. The Advocate General then explains to Sony Music the difference between "free as in speech and free as in beer."

Mr Mc Fadden probably changed the name of his Wi-Fi network to ‘Freiheitstattangst.de’ (freedom, not fear) so as to show his support for the fight against State surveillance of the Internet, that fact in itself has no bearing on the definition of the activity in question as ‘economic’.

And, based on that, the safe harbors should apply, and someone who operates an open WiFi network, as part of a business, can't be forced to lock it up.

Still, the AG does still suggest that injunctions could be possible, just not to the level of password protecting the access point. The opinion suggests that injunctions can be put in place if they are "effective, proportionate and dissuasive" and that they be targeted at specific infringement, rather than a general kind of injunction. And even with an injunction, the access point owner should still not be considered liable for user actions.

Another key point raised in the opinion is that open WiFi has plenty of value, and to argue that all WiFi should be locked up, or that open WiFi is just a tool for infringement is unfair:

First, public Wi-Fi networks used by a large number of people have relatively limited bandwidth and are therefore not particularly susceptible to the risk of infringement of copyright protected works and objects. Secondly, Wi-Fi access points indisputably offer great potential for innovation. Any measures that could hinder the development of that activity should therefore be very carefully examined with reference to their potential benefits.

Of course, as this is just the opinion of the Advocate General, the EU Court of Justice could still go in another direction. It quite frequently does accept the AG's opinion, but does not always do so. Hopefully, this time, it listens.

from the pure-protectionism dept

For more than fifteen years now, companies like Comcast, AT&T, Time Warner Cable and CenturyLink have quite literally paid state legislatures to write protectionist broadband laws. These laws, passed in around 20 states, protect the incumbent duopoly from the faintest specter of broadband competition -- by preventing towns and cities from either building their own broadband networks, or from striking public/private partnerships to improve lagging broadband networks. They're the worst sort of protectionism, written by ISPs and pushed by ALEC and ISP lobbyists to do one thing: protect industry revenues.

Despite the fact the laws strip away citizen rights to decide local infrastructure matters for themselves (because really, who better to decide your town's needs than AT&T or Comcast executives), ISPs for more than a decade managed to forge division by framing this as a partisan issue. But then something changed: companies like Google Fiber and Tucows began highlighting how public/private partnerships are actually a great way to fill in the broadband gaps left by an apathetic, uncompetitive broadband duopoly.

After fifteen years of napping, the FCC also jumped into the fray and began fighting these laws in two states (Tennessee and North Carolina), arguing they hindered the FCC's mandate to ensure even and speedy broadband deployment. The broadband industry responded by having loyal politicians like Marsha Blackburn run to defend these bills, purportedly "outraged" by the FCC's "assault on states' rights" (please note that incumbent ISPs being allowed to write horrible state telecom law did not cause the slightest offense).

And with a brighter spotlight being shined on these laws, the partisan division encouraged by the broadband industry is mysteriously beginning to fade away. In Tennessee, lawmakers have been pushing a law that would dismantle AT&T's version of the law in that state, which has stopped a popular Chattanooga municipal gigabit provider (EPB) from expanding. Lawmakers pushing the bill appear to now be realizing just how destructive AT&T's lobbying apparatus has been to broadband, and aren't mincing words:

"We're talking about AT&T," Sen. Todd Gardenhire, R-Chattanooga, bluntly told a rally of business owners, families and local officials gathered in the state Capitol. "They're the most powerful lobbying organization in this state by far." The bill has been opposed for years by AT&T, Comcast and other providers who say it's unfair for them to have to compete with government entities like EPB. But EPB, as well as some lawmakers like Gardenhire, say if the free market isn't providing the service, someone else should. "Don't fall for the argument that this is a free market versus government battle," Gardenhire said. "It is not. AT&T is the villain here, and so are the other people and cable."

AT&T's response to Tennessee's sudden realization that the company has actively worked to ensure the state remains a broadband backwater? Give a lecture on how taxpayer money is fine to throw at AT&T, but is wasteful to use on delivering broadband to areas AT&T refuses to serve or upgrade:

AT&T spokesman Daniel Hayes said in an email "it is incorrect to equate the common practice of government providing incentives to encourage private-sector behavior with the concept of direct government competition."..."Generating significant amounts of public debt to sustain municipal networks is a different animal," Hayes added. "Taxpayer money should not be used to over-build or compete with the private sector, which has a proven history of funding, building, operating and upgrading broadband networks. Policies that discourage private-sector investment put at risk the world-class broadband infrastructure American consumers deserve and enjoy today."

The problem with that argument: that "proven history" isn't real. Companies like AT&T and Verizon have taken billions in subsidies over the years from federal and local governments, then failed repeatedly to meet deployment obligations. Companies like AT&T are now focusing all their attention on wireless and, outside of high-end development communities, have frozen deployment of fixed-line broadband. In fact, these companies are looking to disconnect millions of DSL customers they don't want to upgrade, potentially resulting in greater broadband gaps than ever before. Yet here the company is, still lecturing locals desperately looking for better connectivity on how only AT&T has the solution for what ails them.

Here's the thing about municipal broadband: if broadband providers don't want towns and cities getting into the broadband business, the solution is simple: provide better, faster, and cheaper broadband. These residents and local businesses aren't jumping into often pricey and labor-intensive broadband projects because they think it's fun. They're doing so because the entrenched broadband providers are refusing to upgrade their networks, and waiting for mono/duopolies with no competitive incentive to upgrade has proven to be a fool's errand.

And while incumbent carriers for years successfully fueled partisan division to ensure nobody really stopped and thought about what companies like AT&T were doing, as the years pass and many remain stuck on last-generation DSL -- the whiff of lobbyist bullshit has begun to hang more heavily in the air. As a result, locals in many areas are finally waking up from AT&T's trance, and realizing that if they're ever going to get next-generation broadband in a market without real competition, they very well may have to be the ones to build it.

from the like-my-subsidized-Rolex? dept

For many years now, the General Accounting Office has warned the FCC that if it's going to throw billions of dollars at giant ISPs, it might just want to track how that money is spent. GAO reports like this one from 2009 (pdf) noted that not only has the FCC historically done a dismal job at tracking subsidy spending, most government broadband policies have been based on flawed, incomplete or downright hallucinated data (just check out our $300 million US broadband map). In other words, for the better part of fifteen years our government not only didn't really know where broadband funding was needed, it couldn't be bothered to track if it was actually going there.

Not too surprisingly, as a result, we've seen years of fraud, waste and abuse in the FCC's Universal Service Fund (USF) and e-rate programs intended for rural and school telecom improvements. To be clear, the USF has certainly helped thousands of communities; but were someone to conduct an audit of state and federal broadband subsidies since the late nineties (which will never happen) they'd very likely find that misdirected funds could have delivered a fiber connection to every U.S. home and school -- several times over.

As the FCC looks to expand the USF to cover additional rural broadband deployment, it's now warning ISPs that somebody's at least pretending to watch where billions of dollars are going. An FCC notice to recipients of FCC funds (pdf) this month informs companies that subsidies intended for broadband...should actually be used for broadband:

"The Commission reminds all eligible telecommunications carriers (ETCs) that receive support from the Universal Service Fund’s high-cost mechanisms of their obligations to use such support only for its intended purposes of maintaining and extending communications service to rural, high-cost areas of the nation."

The FCC proceeds to remind ISPs that this money should not be used for booze, gifts for co-workers, entertainment, political donations or cafeteria art work. Amusingly, the FCC includes a few examples of ISPs that have decided to use the USF as their own personal little slush fund. One ISP, by the name of Sandwich Isles Communications, collected $242,489,940 from the USF over a decade, purportedly to provide telecom service to just 3,659 rural customers. Instead, company owner Albert Hee used taxpayer money for everything from massages to trips to Disney World:

"For example, the companies apparently paid $96,000 so that Hee could receive two-hour massages twice a week; $119,909 for personal expenses, including family trips to Disney World, Tahiti, France, and Switzerland and a four-day family vacation at the Mauna Lani resort; $736,900 for college tuition and housing expenses for Hee’s three children; $1,300,000 for a home in Santa Clara, California for his children’s use as college housing; and $1,676,685 in wages and fringe benefits for his wife and three children."

Note the FCC never bothered to notice. Lee was ultimately convicted in Hawaii of filing bogus tax returns, and the FCC stopped throwing money at the company only just a few months ago. So while it's great the FCC seems to finally be paying closer attention to broadband subsidy fraud (it launched a new strike force last year tasked with rooting out abuse), most of the companies abusing the USF over the last twenty years have had notably more clever accountants, lawyers and lobbyists than Lee (read: AT&T and Verizon). Given these more formidable adversaries you'd be hard pressed in finding anybody interested in conducting an audit to see where those billions of dollars actually went. Still, moving forward, it's a good reminder for everybody that taxpayer subsidies should not be used for Jagermeister shots and happy endings.

from the but-here's-how-to-avoid-them dept

As we reported earlier this year, Australia put in place a ridiculous data retention law that requires ISPs to store all sorts of information on users just in case the government would like to snoop through it. The main force behind the law, Attorney General George Brandis, is so clueless that he clearly did not understand the details when he was quizzed about it. Here's a brief excerpt from an interview he did last year:

Brandis: Well, what we'll be able... what the security agencies want to know... to be retained... is the... is the electronic address of the website that the web user is visiting.

Host: So it does tell you the website.

Brandis: Well... well... it tells you the address of the website.

Host: That's the website, isn't it? It tells you what website you've been to.

Brandis: Well, when... when you visit a website you... you know, people browse from one thing to the next and... and... that browsing history won't be retained or... or... or... there won't be any capacity to access that.

Host: Excuse my confusion here, but if you are retaining the web address, you are retaining the website, aren't you?

Brandis: Well... the... every website has an electronic address, right?

Host: And that's recorded.

Brandis: And... um... whether there's a connection... when a connection is made between one computer terminal and a web address, that fact and the time of the connection, and the duration of the connection, is what we mean by metadata, in that context.

Host: I don't see the difference between that and what website I've visited.

Brandis: Well, when you go to a website, commonly, you will go from one web page to another, from one link to another to another, within that website. That's not what we're interested in.

As of the beginning of this week, that law is now in effect. And... it sounds like the implementation is going just about as cleanly as you might imagine given Brandis' statements above. A report from ITNews in Australia suggests that the Attorney General's office is a complete mess, and ISPs aren't at all sure what they're supposed to be doing right now. Yes, the law requires many to start collecting lots of information, but smaller ISPs can apply to the Attorney General for exemptions or extended timelines for implementation, and it appears many of them have (of course, the Attorney General's office refuses to reveal how many). ITNews surveyed a bunch of ISPs, with many saying they had sent in a "data retention implementation plan (DRIP)" that would allow them to delay implementation -- but the majority of them hadn't heard anything back, so they have no idea if their plan was accepted or not:

Around 58 percent of Comms Alliance survey respondents said they had submitted a DRIP to the AGD, while 23 percent more said they would soon. Just 19 percent said they had not.

However, a staggering 76 percent of those that had submitted a DRIP claimed they had not yet heard back from the AGD as to whether it had been approved.

A total of 9 percent had received approved DRIPs, and around 14 percent said final approval was still pending

Gee, it almost sounds like Brandis' office is dealing with a bit of information overload and doesn't know how to deal with it. Doesn't that seem like a great situation to now add much more data to? Meanwhile, this whole scheme -- of which there is no evidence that it will be even remotely useful -- is going to cost everyone hundreds of millions of dollars. The government is paying for some of it (meaning taxpayer funds) while expecting the rest to be covered by increasing ISP fees. In short: everyone in Australia now has to pay lots more money for an incompetent government agency to more easily spy on them. How nice.

It seems like the only sensible response has come from Senator Scott Ludlam, who fought hard against the data retention plan. He's now telling people to encrypt their data and to use VPNs and Tor to hide from the government.

from the lobbying-dollars-at-work dept

Earlier this year, the Federal Communications Commission voted to ease the way for cities to become Internet service providers. So-called municipal broadband is already a reality in a few towns, often providing Internet access and faster service to rural communities that cable companies don't serve.

The cable and telecommunications industry have long lobbied against city-run broadband, arguing that taxpayer money should not fund potential competitors to private companies.

The telecom companies have what may seem like an unlikely ally: states. Roughly 20 states have restrictions against municipal broadband.

And the attorneys general in North Carolina and Tennessee have recently filed lawsuits in an attempt to overrule the FCC and block towns in these states from expanding publicly funded Internet service.

North Carolina's attorney general argued in a suit filed in May that the "FCC unlawfully inserted itself between the State and the State's political subdivisions." Tennessee's attorney general filed a similar suit in March.

Tennessee has hired one of the country's largest telecom lobbying and law firms, Wiley Rein, to represent the state in its suit. The firm, founded by a former FCC chairman, has represented AT&T, Verizon and Qwest, among others.

James Tierney, director of the National State Attorneys General Program at Columbia Law School, said it is not unusual for attorneys general to seek outside counsel for specialized cases that they view as a priority.

Asked about the suit, the Tennessee attorney general's office told ProPublica, "This is a question of the state's sovereign ability to define the role of its local governmental units." North Carolina Attorney General's office said in a statement that the "legal defense of state laws by the Attorney General's office is a statutory requirement."

North Carolina is no exception. The state's Attorney General Roy Cooper received roughly $35,000 from the telecommunications industry in his 2012 run for office. Only the state's retail industry gave more.

If the court upholds the FCC's authority to preempt restrictions in North Carolina and Tennessee, it may embolden other cities to file petitions with the agency, according to lawyer Jim Baller, who represents Wilson and the Chattanooga Electric Power Board. "A victory by the FCC would be a very welcome result for many communities across America," said Baller.

For some residents in and outside of Chattanooga, clearing the way to city-run broadband would mean the sort of faster Internet access that others might take for granted.

For 12 years, Eva VanHook, 39, of Georgetown, Tennessee, lived with a satellite broadband connection so slow that she'd read a book while waiting for a web page to load. In order for her son to access online materials for his school assignments, she'd drive him 12 miles to their church parking lot, where he could access faster WiFi.

Charter, the local Internet service provider, declined several requests by her husband to build lines out to her home. Only last month did Charter connect her home to the Internet. "Even the possibility to jump on [the local utility's] gigabit network would blow our minds right now," VanHook said. "There is nothing faster than Chattanooga. Just through meeting them and hearing them speak and having them understand what's going on, that's the kind of place I want to do business."

from the network-shenanigans dept

While filing a net neutrality complaint is now easier than ever, actually identifying violations may not be. In the new age of interconnection, usage caps, overages, and pay-to-play zero rating deals, less technical users simply may not understand when they're being screwed by their ISP, as these violations aren't nearly as ham-fistedly obvious as outright blocking or throttling of services. That's why the Open Technology Institute’s MLAB recently introduced the Internet health test, which runs user connections through a bevy of speed and performance tests to determine whether or not ISPs are engaged in any shenanigans.

Last October, MLAB released a study (pdf) that strongly supported Netflix, Level3 and Cogent's claims that ISPs were intentionally letting peering points to transit operators saturate to try and force companies like Netflix to begin paying for direct interconnection. In short, neutrality advocates believe ISPs had moved net neutrality to the edge of the network, using interconnection to grab the pound of flesh from content companies they've long stated was their end goal.

The problem is both sides of the equation (whether that's Netflix or AT&T) keep most of their data on interconnection (and the deals they strike) private for competitive reasons, meaning that while signs (and thirty years of history) pointed to ISP skulduggery, actually proving it is difficult. It's apparently becoming less difficult with the new consumer connection data being collected by MLAB, which the Guardian this week claimed proves big ISPs are intentionally degrading network performance across some networks:

"The study, conducted by internet activists BattlefortheNet, looked at the results from 300,000 internet users and found significant degradations on the networks of the five largest internet service providers (ISPs), representing 75% of all wireline households across the US...In Atlanta, for example, Comcast provided hourly median download speeds over a CDN called GTT of 21.4 megabits per second at 7pm throughout the month of May. AT&T provided speeds over the same network of ⅕ of a megabit per second. When a network sends more than twice the traffic it receives, that network is required by AT&T to pay for the privilege."

This is, consumer advocate group Free Press claims, proof positive that ISPs are up to no good:

"For too long, internet access providers and their lobbyists have characterized net neutrality protections as a solution in search of a problem,” said Karr. “Data compiled using the Internet Health Test show us otherwise – that there is widespread and systemic abuse across the network. The irony is that this trove of evidence is becoming public just as many in Congress are trying to strip away the open internet protections that would prevent such bad behavior."

The problem? While the Guardian report references a "new study," no study has actually been released that I could find (MLAB apparently just shared some selective data with The Guardian). That brings us back to the fact that the biggest problem here continues to be a lack of transparency on the part of all the players involved. But it's pretty hard to claim a "study" proves much of anything when there's no actual study, suggesting some over-eagerness on the parts of consumer advocates here.

Shortly after the Guardian piece MLABS did post a blog entry that sheds a little more light on the data they're collecting, but it's worth noting that while MLAB engineers are confident in saying these slowdowns are due to business choices and not network capacity, they're not yet willing to definitively state why some transit routes suffer more than others:

"It is important to note that while we are able to observe and record these episodes of performance degradation, nothing in the data allows us to draw conclusions about who is responsible for the performance degradation. We leave determining the underlying cause of the degradation to others, and focus solely on the data, which tells us about consumer conditions irrespective of cause."

Still, despite some of the breathless rhetoric in the Guardian piece neutrality advocates still haven't obtained the AT&T lawyer proof silver bullet that indisputably proves large ISPs have been up to no good. I'm not entirely sure this can even be accomplished without access to raw, confidential ISP data and internal correspondence that may or may not even exist (how do you "prove" Verizon intentionally isn't upgrading a port?). Sure, most people can study AT&T and Verizon's behavior over the last thirty years and conclude that yes, this sort of thing would certainly be in their jackassery wheelhouse, but proving it is kind of important if you want these kinds of claims to be taken seriously.

Still, the fact that people are crunching and closely analyzing the data, combined with the new and novel threat of a regulator that's not asleep at the wheel, appears to have many of these companies magically and suddenly getting along famously. This suggests, contrary to broadband industry doomsday prognostications, that the net neutrality rules are having a positive impact on consumers, business interests, and the Internet at large.

from the deep-well-of-dysfunction dept

When the entertainment and broadband industries' "six strikes" anti-piracy regime first launched a few years ago, most people (outside of Hollywood) realized it wouldn't work for a number of reasons. One, data has pretty consistently shown that such graduated response anti-piracy systems -- whether three "strikes" or six -- don't work, and in fact may actually make things worse. Two, even partner ISP execs I spoke to ahead of the program's launch made it clear they knew the program wouldn't do much, with most infringers simply hiding their behavior behind proxy servers of VPNs.

Publicly, the firm created to run the program (the Center for Copyright Information) has frequently tried to claim the program is a smashing success, often using unreliable, contradictory evidence to try and suggest pushing ISPs into the role of content nannies was a wonderful idea. But privately, Hollywood and the MPAA have acknowledged the program isn't doing much, though they're quick to argue that this is only because it hasn't yet been "brought up to scale."

Amusingly, some of the very same Hollywood voices that pushed so hard for six strikes and ignored warnings that it wouldn't work, are now calling the program an abject failure. The Internet Security Task Force, a coalition of smaller studios, which counts copyright troll Voltage Pictures among its members, has come out swinging this week against six strikes in a press release, calling the program a "sham":

"We’ve always known the Copyright Alert System was ineffective, as it allows people to steal six movies from us before they get an educational leaflet. But now we have the data to prove that it’s a sham," Gill comments. "On our film ‘Expendables 3,’ which has been illegally viewed more than 60 million times, the CAS only allowed 0.3% of our infringement notices through to their customers. The other 99.7% of the time, the notices went in the trash,” he adds."

One, ISTF doesn't appear to know how the program Hollywood pushed for actually works, since users receive an "educational leaflet" the first time they're found to infringe. Steps two through six then include "mitigation measures" that may involve having your connection throttled or finding your broadband access temporarily suspended until you've clearly acknowledged you've been naughty. Users then have the honor of paying a $35 fee if they'd like to fight the accusation. After the sixth strike nothing happens, and nobody tracks offenders between ISPs, something Hollywood is surely eager to "remedy" with program updates.

ISTF notes that the five major ISPs participating in six strikes (AT&T U-verse, Cablevision, Comcast, Time Warner Cable and Verizon FiOS), saw a 4.54% increase in infringements during the fourth quarter of last year. Two non-participating ISPs, Charter and Cox (the latter of which is being sued by BMG for allegedly ignoring piracy), saw a 25.47% decrease in infringements during that same period. Assuming you can trust Hollywood math here (never a wise bet), the ISTF claims this is proof of the fact that ISPs aren't taking piracy seriously:

"These alarming numbers show that the CAS is little more than talking point utilized to suggest these five ISPs are doing something to combat piracy when in actuality, their customers are free to continue pirating content with absolutely no consequences," said ISTF member Nicolas Chartier, CEO of Voltage. "As for its laughable six strikes policy, would any American retailer wait for someone to rob them six times before handing them an educational leaflet? Of course not, they call the cops the first time around."

Of course if non-participating ISPs are seeing infringement drop massively while participating ISPs are seeing a slight rise, that would seem to suggest that graduated response programs actually make things worse, which is what data Hollywood ignored said in the first place. The ISTF's solution for the States is to implement an uglier version of Canada's Copyright Modernization Act, which gives ISPs safe harbor only if they agree to pass on all infringement notices. While the Canadian law caps damages, it hasn't done much to thwart copyright trolls, who appear to just be making up for the income reduction by shaking down Canadian users on greater scale.

While these smaller studios are solely focused on greasing the rails for their "settlement-o-matic" shake downs, it's only a matter of time before the MPAA and the larger studios start pushing for "improvements" to six strikes as well, whether that's an organization that tracks offenders between ISPs, or a frontal assault on VPNs and proxy services. And that's just it, these studios consistently whine about the need for aggressive enforcement policies that have been proven not to work, and when they fail the answer isn't adaptation of the business models to the modern age, it's an expansion of already-bad ideas that clearly aren't working. It's a bottomless well of dysfunction. Unfortunately for Hollywood, any expansion of six strikes is going to have a steeper uphill climb in the post SOPA era, which may hinder the program from mutating into something truly monstrous.

from the today-on-This-Old-Rhetorical-Device dept

Ever since the Canadian Supreme Court declared law enforcement needed a warrant or court order to obtain ISP subscriber data, Canadian cops have been complaining. What used to be an "informal" process that required "five minutes" of paperwork (and led to law enforcement requesting ISP user data every 27 seconds), now apparently takes up to "ten hours" and is apparently damn near impossible to complete.

As a result, law enforcement has been forced decided to drop cases in which it couldn't put together enough probable cause to secure a warrant or court order. For some reason, the affected agencies seem to feel this is indicative of a broken system, rather than the way it always should have been. If an officer doesn't have enough agency to justify a request for subscriber data, does he or she really have enough information to justify a continued investigation?

The Royal Canadian Mounted Police (RCMP) were the first to complain about the warrant requirement, circulating a memo late last year that declared the ruling was probably resulting in dropped cases -- although this claim also seemed to be short on supporting information.

"Evidence is limited at this early stage, but some cases have already been abandoned by the RCMP as a result of not having enough information to get a production order to obtain (basic subscriber information)," the memo says.

Apparently, this round of complaints didn't gain enough traction to motivate legislators to undercut the Supreme Court decision. So, law enforcement officials are trying again, but this time they're using one of the cheapest and most overused rhetorical ploys: child molesters/pornographers going unarrested.

An RCMP spokesman confirmed the court decision has hampered the ability of police to track down Internet child abusers.

The ruling "has added extra administrative steps to such investigations by requiring police to obtain production orders for basic subscriber information," said Sgt. Harold Pfleiderer.

"Now, investigations of online child exploitation usually take more time. In many cases, there is insufficient information for police to obtain a production order even with the jurisdictional request information."

When Pfleiderer says "administrative," he's actually referring to the minimal efforts officers must make to ensure the civil liberties of Canadian citizens aren't violated. To him, it's just extra paperwork. To the rest of the nation, it's nothing more than what they've generally expected from their service providers when dealing with data requests: that it won't be handed over without justification.

The RCMP want legislators to pave it an unimpeded path to subscriber data -- something the Court's decision noted was a remedy (of sorts) for law enforcement agencies who felt being asked to respect the rights of others was too much of a burden. And nothing prompts legislators to act quickly and inconsiderately like claiming an untold number of pedophiles are wandering the nation completely unarrested.

The Supreme Court ruling suggested the government could pass a "reasonable" law to allow police to obtain basic subscriber information from ISPs, but a spokesman for Public Safety Minister Steven Blaney indicated that is not yet in the works.

"Our government is currently reviewing the decision," said Jeremy Laurin.

Adding to the stupidity, a top online porn cop paraphrases Dirty Harry to suggest some citizens should have fewer rights than others, even while still in the mostly-speculative part of an investigation.

"It's creating a lag in our investigations," said Sgt. Maureen Bryden of the Ottawa police online porn unit. "It's taking more time for us to get to the serious investigations."

"Whose rights do you really think are more important?" she said, criticizing the Supreme Court ruling. "The victim child that's being sexually exploited? Or the offender?"

Oh, I'd say they're equally important. The same court decision that "protects" child molesters also protects the millions of Canadian citizens who've never committed a criminal act in their lives. But the police want suspects to have fewer rights, even if it means those who aren't suspects end up with fewer privacy protections.

Bryden cites a "lag" and other quotes say cases can't be prioritized effectively to allow the pursuit of sexual offenders. But looking at the actual numbers blows any claims about workloads or priorities right out of the water. In 2011, Canadian law enforcement filed nearly 1.2 million requests for subscriber data. The 2013 stats quoted in this article cite a 50% drop off in requests related to child exploitation cases from 2013's high of 1,038. Somewhere in between there -- if request numbers remained largely flat (rather than escalating) from year-to-year -- that's still nearly 1.2 million requests for data every year that have nothing to do with Canadian law enforcement's sudden foremost concern. I think there's plenty of room left for shifting man-hours towards preventing child exploitation -- even with the warrant requirement.

"The Code does not place a general obligation on ISPs to monitor and detect online copyright infringement," the publishers write. "AMPAL submits that ideally the Code should include such a duty using ISPs’ monitoring and filtering techniques."

...

"The Code does not require ISPs to block access to infringing material. AMPAL submits that ideally the Code should include provisions obliging ISPs to take such action following provision of the relevant information by Rights Holders and/or following discovery of copyright infringing websites by ISPs’ monitoring and filtering techniques," the publishers write.

...

"AMPAL submits that ideally additional options should be available to Rights Holders in the form of sanctions or mitigation procedures to be imposed on Account Holders," the publishers write.

In other words, AMPAL wants to get ISPs do all the dirty work, turning them into both cops and executioner. But AMPAL isn't alone in coming up with disproportionate responses to the ISP code. Via ZDNet, here's a comment from BBC Worldwide (pdf), the wholly-owned commercial arm of the British broadcaster:

The Code is ill-equipped [to] deal with consumers who spoof or mask their IP addresses to avoid detection, behaviour that we believe will increase as a result of an introduction of a notice scheme.

The footnote for that point refers to a TorrentFreak article about Canadian piracy notifications boosting demand for VPNs, which confirms that what BBC Worldwide is concerned about here is the ease with which Australians will be able to use things like VPNs to evade sanctions by masking their IP address.

Of course, anyone who understands how the Internet works -- and how people use it -- has been pointing this out for years. But the worrying thing is that the copyright industry seems to be surprised by this possibility. Knowing the way it thinks, and its complete indifference to the collateral damage it might cause, the fear has to be that the next stage in its war on sharing will be demanding that governments ban VPNs.